England Overview of Chancery Court (National Institute)

From FamilySearch Wiki
Jump to navigation Jump to search
 
National Institute for Genealogical StudiesNational Institute for Genealogical Studies.gif

The original content for this article was contributed by The National Institute for Genealogical Studies in June 2012. It is an excerpt from their course English: Court Records-Criminal, Civil and Ecclesiastical  by Dr. Penelope Christensen. The Institute offers over 200 comprehensive genealogy courses for a fee ($).

 

Chancery (Equity) Court[edit | edit source]

In early times it was the king in council who received the petitions from those subjects not satisfied by common law procedures, but by the end of the 15th century the chancellor, a leading member of the king's council had taken over this role.  The Chancellor was often a bishop having no legal training but much common sense, and his chancery could sit anywhere and at any time;  the procedures was a simple and informal thus quick and inexpensive.  It was based on equity not common law and conducted entirely by English.

Equity[edit | edit source]

Equity is a system of justice based on conscience and fairness rather than on the strict rules of common law. A decision in equity was one given in accordance with natural justice where the law did not provide adequate remedy, or in which its operation would have been unfair. After the Reformation lawyers tended to be appointed as chancellors and they regarded decisions in equity as precedents and thus equity soon became an organized system of rules as rigid as those of law. Chancery business became more rigid, slow and expensive because chancery clerks were paid fees not salaries, so the more paperwork they could generate the higher their income. However this system had benefits for the future genealogist with the volume of documents generated! Chancery is the court with more surviving records than any other.

The system became so moribund during the early 19th century that reforms were made, culminating in the incorporation of chancery as simply a division in the new High Court of Justice in 1873-1875 and the empowering of judges to administer both law and equity.

Chancery Procedure[edit | edit source]

Chancery procedure is also known as English bill procedure, and was also used in the Court of Requests and Star Chamber. These equity courts required written submissions (pleadings) and written evidence and their decisions superseded common and statute law.

A case started with a petition or bill requesting the chancellor to give equitable justice to the plaintiff. It continued by answer, replication, rejoinder, interrogatories and depositions. This allowed both plaintiffs and defendants to lodge with the court colourful, anecdotal and often tendentious accounts of their mishaps, frequently at great length (Hey). Fitzhugh notes that any propertied family is almost sure to have been concerned at some time in a chancery suit.

Coldham evinces that it is probably a sufficient recommendation of the value of chancery records in a genealogical context to say that it is often possible to come across a five-generation pedigree not only compiled by contemporary litigants and witnesses but authenticated by a master in chancery. Primary information about migration, marriage, births, deaths and kinship are all here. So also is evidence of their social relationships and aspirations, land ownership, business transactions and wealth or lack thereof. The court of chancery did not deal with criminal cases but did handle disputes arising from criminal cases.

Coldham has some beautiful examples of the detail to be found—one case stretching from 1832-1851 has a family bible, sworn testimonies of an uncle and the vicar and sexton of a town in Ireland, as well as a tombstone inscription. Unett and Turner say some instances spring to mind where exact dates of birth and death are given for members of a family, where an unproved will was produced as evidence, details of acknowledgement of paternity of illegitimate children, information on members of a family scattered to the four corners of the earth, and often there are pedigrees of biblical proportions. They have some beautiful examples and an unusual approach to the records well worth reading.

Habgood-Everitt (Habgood versus Habgood in Chancery. Latton Publications, Kent. Reviewed in Genealogists’ Magazine Vol 25 #7, page 284) has written the story of a boy sent to London to be apprenticed and who found wealth, honour and great troubles caused by two men, one a writer, bankrupt and bigamist, the other an MP, all traced through chancery court records. Other interesting examples are given by Currer-Briggs (Genealogical Gleanings from Cases in Chancery and Admiralty. Family Tree Magazine Vol 13 #6, page 20-21) , Hamilton-Edwards (Should Fanny Have Been Sent to France “ Revelations of a Chancery Proceeding. Genealogists’ Magazine Vol 16 #1, page 10-14), and Pinhorn (Chancery Proceedings. Genealogists’ Magazine Vol 21 #1, page 33, 1983).

Main Types of Records[edit | edit source]

There are three main types of records—proceedings, registers and exhibits (Fitzhugh):

Proceedings[edit | edit source]

  • Bill of Complaint by the plaintiff (also referred to as the complainant or orator) which states his name, quality or occupation and residence as well as the nature of the complaint. Alternatively the proceedings could start with a Bill of Information by the crown. Either would be addressed to the Lord Chancellor or the Lord Keeper of the Great Seal. These bills are very long and full of legal jargon but end with a citation of the names of those complained against. In over 20% of cases the filing of a bill resulted in an informal settlement perhaps by arbitration, and maybe with a financial settlement, and no more records for the case are found (Horwitz 1998). Of those which went further into the pleadings stages (below) some 70% did not result in a decree, but were abandoned for the same reasons but which are not recorded because they took place out of court.
  • Writ of Subpoena ordering the defendant to appear in court. Not a lot of these have survived.
  • Answer by the Defendant, which is the defendant’s version of the facts, or a Plea to Reject the Bill on legal grounds.
  • Replication, or Exception, by the plaintiff which further protracts the case.
  • Rejoinder by the defendant.
  • Rebuttal may be given by the plaintiff.
  • Surebuttal may be given by the defendant.
  • Interrogatories which are lists of questions to be put to the parties, drawn up by counsels for both parties.
  • Depositions by witnesses, which give their name, age, residence and occupation. Town depositions (1534-1867) are those taken in London from witnesses living there or visiting for the purpose; there may be two sets- one for the plaintiff and one for the defendant. Country depositions (1558-1714) are those taken outside London or abroad by a commission set up for that purpose.
  • A Bill of Revival, if one of the parties died before the case was heard.

Unfortunately for the researcher the above items are frequently filed separately so it is a lot of work to assemble all the pieces of the puzzle.

As an example, Bernau indexed the country depositions taken in Cheshire 1714-1758 (class C 11) and the following example is in pencil in a notebook FHL book 942 P2dp.

1728 Depositions taken at Chester C 11/422/10
Eliz Whitehead, wife of Thomas W mariner of Nether Bebbington,
Cheshire age 59
Robt Jones of Puddington, yeoman age 33
Thos Wright of Neston, Cheshire husbandman age 70
Thos Dunbabin of Chester, Cheshire glazier age 59 (2 depositions)
Catherine Inglefield of Lower Bebbington, Cheshire widow age 49

Registers[edit | edit source]

  • Entry Books of Orders and Decrees. Orders were injunctions to do something, such as appear in court or produce witnesses or documents. Decrees were the decisions of the court, and were also issued as a separate document recording it in full. The Order and Decree books summarize the action and allow the researcher to track the progress of a case. They are also useful in locating a case that has changed its name perhaps because of a death, for example from A v. B to C v. D.br>
  • Awards and Agreements, which were decisions reached by arbitration.
  • Masters’ Report and Affidavits. These were the reports to the chancellor from his ten court officials called masters, regarding the reliability of evidence and witnesses, as well as disputes requiring financial arbitration, division of property or rents, or establishing rightful inheritance.
The usefulness of the exceedingly thorough Masters’ records is reviewed by Coldham (Genealogical Resources in Chancery Records. Genealogists’ Magazine Part 1 in Vol 19 #10, page 345-347; Part 2 in Vol 20 #8, page 257-260, 1978) who gives a chronological list of all the Masters’ names. The pedigrees in the masters papers are indexed by the name of the earliest ancestor. TNA research guide L39 gives up-to-date information.

Exhibits[edit | edit source]

All documents (and some objects) that were lodged with the masters were known as exhibits; if they were not reclaimed they are to be found in chancery masters exhibits classes C 103-115. They can include account books, rent rolls, estate papers and deeds, indentures, diaries, personal and business correspondence, bonds, newspaper cuttings, prayer books and bibles, manorial court rolls, marriage settlements, wills, business ledgers, letters and other material which would probably never have survived otherwise. Consult TNA research guide L41 for more information.

There exist published and/or filmed abstracts of chancery proceedings for certain families or places, for example on film 0087050, which was the thinnest film I have ever seen—barely made it past the spindle! This is a typescript work by A. May Osler on the Baldwyn family done in 1923-1924. Examples follow

Chart: Abstracts of Chancery Proceedings
Class 6 Collings Divisions

Bundle 34 No 21 To Edward Earl of Clarendon, Ld Chancellor 26 April 1667

Complaint by Thomas Baldwin of St. Olave's Southwark, Surrey woodmonger that Henry Gale, late of Redriff mariner, about 14 years ago was possessed of a thirty-second part of a ship called The Good Intent of Aldborough, complainant having a like share. Being desirous to sell his share, Henry Gale promised the same to Baldwin for 40s., which Baldwin paid but has not received the said share. (signed) Wm Beversham

Bundle 514 No 89

To the Rt Hon Heneage Lord Finch Baron of Daventry Ld High Chancellor of England 21 February 1679/80

Complaint by Robert Baldwyn of [blank] co Wilts, son of John Baldwyn of Yatesbury, co Wilts yeoman, that about 8 years ago he was bound apprentice to Grace Lawrence of Calne widow, relict of John Lawrence clothier, for seven years and the said Grace taking a liking to him it was agreed between them they should marry. Before said marriage took place William Beaton became a suitor to her and she promised to pay complainant £6 a year for life if he would release her from her promise. She paid him whilst single £3, but since her marriage to Beaton has paid nothing and therefore he desires William and Grace may be summoned to answer the premises.

(signed) Westbeare (signed) R. Holford

Bundle 515 No151. To the Rt Hon George Lord Jeffryes, Baron of Wenn Ld High Chancellor of England 20 April 1687
Complaint by George Baldwin of King’s Langley, co Herts, yeoman, younger son of Thomas Baldwin late of Abbot’s Langley. Co Herts, yeoman deceased, that his said father was seized of a customary messuage in Abbot’s Langley and lands there and surrendered the same to the use of his last will. He made his will 23 Dec 1685 and devised his lands to his younger son Edward, younger brother of the complainant, Edward to pay said George £20. Thomas died and Edward entered into said premises and refused and still refuses to pay the said money
(signed) Henry Appleton


___________________________________________________________________

Information in this Wiki page is excerpted from the online course English: Court Records-Criminal, Civil and Ecclesiastical offered by The National Institute for Genealogical Studies. To learn more about this course or other courses available from the Institute, see our website. We can be contacted at wiki@genealogicalstudies.com

We welcome updates and additions to this Wiki page.